Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1887-04-15

ever. refused 70 instruct the jury TO that efect.
ard gave two instructions OF It's own. inc
"' sTbe Jury are instructed that II they believe
.hai mo words complained Of IN mo ferih.a-
tion ne published ~ the defendant In me
Richmond Dispafeh Of March ~, 1884, we're
such vords as from their usual construction
ard common scccpfation are colstruei a. Ia
suits and toDd 70 violence aud breach Of NO
neace they should md for tho plsinfin. unless
hey believe from all The evidence that snfh
uords are substantially true. la whlcn event
they rhould find for the Defendant
This instruction Ia erroneous. and the error
ccnsists in mis-: that Il wholly vifhdraws from
the fury tho consideration cf the question
Wtether tho publication declared on falls witrin
thc protection which the law exicnds 20 privi-
lege gedtcmmr3ieations. Under proper insiruc-
t,cns the jury might have found that although
n language used vns not true. yet that the
defendant In good faith believed it To bo true.
and thnt II was used honestly, without malice,
IN ssif-defcnce. and In the reasonable protcc-
Tor of bis own interest," and II this inry had 30
bcilsvsd from the evidence II would have
been their duty 70 have returned veriict
for fhe defendant. Yet u seems 10 have been
SUR ospd that this question could be considered
onir en- conrec1ion with the measure OF dam
arcs Fer Tho Court in iis second instruction,
after naain telling the jury In effoct tha- they
must find for the plaintiff, II they believed that
the words complained OF we're not true. pro
i II
lleycd that the defendant had reasonn-
bic causo 10 believe. aud did believe.
that tho words were true, and thht
be was provoked 10 the publication thoreof
by the plaintiffs card In the Dispdteh OF Mairh
II, 1874. and shall further believe that The de-
ferdant In publishing snch card OF March y.
1914. wns actuated not BY malice against the
piaintin. but by sn4ioEest desire 10 protect his
business. believing In good faith that The state
ments mado in said card and the accompany
ing certificate Of William Harper we're true,
then the Jury are instructed thai In assessing th-
plaintiffs damages such belief upon his (the
dofcndant'sl part should mitigate the amount
Of damRges"
THE INSTRUCTIONS EXAMINED
Tho theory OF these instructions Il that
malice ~ NOT en- essential Ingredient in a case
arising under the statute, and that " the words
oomplaiped OF he not true, they are not pro-
tected, no matter whether the defendant be-
lieyed they we're trne or what we're the circum-
stances under which they were published. we
cannot concur IN this view.
According to the statute az IL originally was,
ard ns IL wss construed In Brooks %. Galloway
Gud In HOsoley "a. Moss, no plea OF Justification
was admissible In any action under it, and
therefore, rs we have seen, the defendant was
rot permitted 10 plead In bar OF the action tnai
The words uttered we're true. To change the
law IS thus construed the Legislature passed
tho statute already referred to permitting the
truth Of the imputsiioB 20 be pleaded in any
action for defamation. Nor did Il stop there.
II went further, aud amended the statute,
glying q remedy for insults by striking out the
heretofore controlling provision that mo piSp
or exception" should preclude the Jury froin
rassng on the words complained OF. thus leay-
ing an action under the statute substantially
subject 10 the same rules IA respect 10 the defe-
renee by plea which arpiy 10 an action for de-
iamatlfn at common law. And II cannot be
doubted that II the statute had been tho same
as IL now Il when Brooks rs. Galloway and
Moseley rf Moss were decided, those cases
would have leen decided the other way with
out the help Of the statute subsequently
raseed permitfing the truth 10 DO pleaded Ia
justification, rs II may DCw he done. And IL the
truth Of the words may be pleaded by virtue OF
the amendment Of tie statute Itself. 20 may the
defendant show. IL he can. that tho publication
declared on is justified by the circumstances
under which u is made. In other words CON-
munication which would he privileged In an ac-
ton at common law will II made under sub
stantially the same or similar circumstances
be likewife privileged In m action for Insults
under the statute. For there Il nothing 10 indi-
cate that the Legislature intended, when
amending ihe statute, 20 leave the hands OF
defendant tied aud 20 preclude him whom a.
sailed from defending himself or protecting bis
interests within the limits prescribed by the
COMMON law.
1he ruth, doubtless, T. that when the smeni-
D.eDt was made the Legislature had arrived az
tie conclusion that. az means Of suppre5siDg
dIelling the statute, 10 fan NJ lcas. IA the civil
~
and, therefore, determined TO permit any plea
10 be fled I'm On action under Il which Is admis-
sible in an action for SANDER at common
law. Az all events, such is the effect Of
tie amended statute. The result II thni
he instructions given IN the present case
are erroneous. The facts are that on The
9th Of March. 1874, the defendant pub
lisbod IN the Din Gfeh n card denying the ru-
mOrn that the firm OF which he was a men,
Der had retired from the real estate business,
and impufiBg misconduct TO the agents Of II.
L. STAPLES & Co. in that by misrepresentation
and Otherwise ihey hGbitually sought 10 pre-
vent the defendants correspondents from sec
ing him or bis firm. He also announced his
purpose 10 bring an action at once against ii.
l. Staples 4 Co. for damages. saying, further.
ihat his firm had established an extensive
business, at greet cost, nnd meant 10 protect
themselves against all such sharp practice
To ihls tho plaintifi replied two days there
after IN ihe seme newspaper, charging the de-
fcndaDt With having published In his card "a
cOni6mptitle. cowardly. malicious li@ " NOW,
In this state Of things the defendant may have
honestly believed that twc-fOld duty was inn
posed upon hiu-vik, inst 10 defend himself
agains4le disroputable charge made against
him and fec0nd. 10 pi0teci hi. Interest by pre-
venting. II he could. unfavorable impress
siOns I6sIecting his published statement
Of alleged grievances, less such impressions
II foIncd IN The community might tend 10 his
prejudice upon the Trial OF his proposed a.
.;on. fccordipgly he published the card,
NINn u ile euultCt oI INC pIooeHt dcbou. III
which he declared that owing to the plaintiffs
known character "a a liar" he could mot
recognize him in the way gentlgman should
be recognized And further, that he ex-
pec,ed 10 sustain the truth OF the statements
contained In bis previous card by the evidence
Of competent witness when his suit against
II. l.. Staples 4 Co. was brought 10 trial.
1T WAS CLRAELY PRIVILEGED COMMUNICATION.
Under ihese circumstances the occasion Of
the publication was clearly privileged, and the
fury ought 10 have been instructed 10 ind for
the defendant II they believed from the evil
dence that 10 had not been abused. That Is TO
say that the defendant had not ayailed himself
Of the occasion TO crafty his malice against the
plaintiff but had honestly and reasonably
acted in the performance Of a duty or IN the
protection Of his own interest.
IL Is needless TO say more. To consider
sCTiatisa the numerous instructions which were
offered by the defendant and refused would
upduly extend this opinion, already too long.
The principles applicable 10 the case are sum-
cienily indicated by what has been said. The
Judgment Will therefore be reversed, aud the
case remf nded for new trial.